Tobin v Shoalhaven City Council

IN THE LAND AND Matter No: 11065 of 2000 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 19 April 2001 JOHN TIMOTHY TOBIN and ANNE MICHELLE TOBIN Applicants v SHOALHAVEN CITY COUNCIL Respondent JUDGMENT Introduction

The Tobins own land at Agar's Lane, Berry ("the subject land").

The subject land is known as lot B in DP 336601; it has an area of approximately 2.663 ha; it is zoned rural 1(c) (Rural Lifestyle); and it has been classified as "prime crop and pasture land".

The Shoalhaven City Council on 31 May 2000 refused development consent to a subdivision of the subject land into two rural residential lots.

In the Tobins' class 1 appeal against Council's refusal, the following preliminary question of law has been raised: Whether clause 12(3) of Shoalhaven Local Environmental Plan 1985 ("the LEP") is in the nature of a development standard or a prohibition.

In argument, the question was also put in an alternative way, namely whether the relevant clause is amenable to modification pursuant to the provisions of State Environmental Planning Policy No.1 ("SEPP 1").

The parties agreed upon a statement of facts, filed on 9 February 2001.

In cl 6 the LEP defines the concept "prime crop and pasture land" to mean:

land identified as Class 1, 2, or 3 on a map entitled 'Agricultural Land Classification' produced by the Department of Agriculture, dated 1986, and available for public inspection at the office of the Council, but does not include land which the Director-General of the Department of Agriculture has notified the Council in writing is not prime crop and pasture land.

Clause 10 provides that "Land to which this plan applies shall not be subdivided except with the consent of the Council".

Clause 11 sets out a series of provisions in respect of the subdivision of land in various zones and deals with the circumstances in which the Council "may grant consent" for a subdivision in those zones, which results in the creation of an allotment of less than 40ha.

However, the subdivision of land in Zone 1(c) is specifically and exclusively dealt with by cl 12 of the LEP, the relevant provision of which is subclause (3), which provides as follows: (3) In determining an application to subdivide land to which this clause applies, the Council must ensure that: (a) the arrangement, number and density of lots and the design and location of roads, drainage and services will: (i) recognise, protect and provide for the ongoing management of environmentally constrained areas; (ii) sustain a rural lifestyle without significant adverse effects on the environmental quality of the area; and (iii) recognise and be compatible with the natural, cultural and landscape features of the locality; (b) each separate allotment created by the subdivision: (i) contains at least one area of suitable size and physical characteristics for a dwelling, outbuildings and associated service area located within the useable site area; (ii) can employ effluent treatment and disposal and soil and water management which meets the objectives set out in clause 26; and (iii) is not less than 1 hectare in area; and (c) where it is proposed to fragment prime crop and pasture land, each lot affected must contain at least 10 hectares of prime crop and pasture land. (emphasis added)

Clause 9(3) relevantly provides as follows: In determining a development application, the Council must take into account the aims and objectives of this plan and the objectives of the zone within which the development is proposed. (emphasis added)

A relevant stated objective of the LEP as a whole is 2(2)(g) in the following terms: to maintain the agricultural use of prime crop and pasture land by minimising development which has had an adverse and irreversible impact on the land's agricultural potential. (emphasis added)

The stated objectives of the Rural 1(c) Zone are as follows: (a) to provide for a range of rural lifestyles suited to each area as an alternative to urban and village lifestyles development forms, and servicing levels; (b) to meet the reasonable lifestyle needs of residents and provide adequate public safety in relation to bushfire, flooding, landslip and traffic while promoting and sustaining a high level of environmental quality in the zone; (c) to integrate new and existing development and lifestyles so that conflicts between land uses and lifestyles are minimised and a high level of landscape quality is sustained; and (d) to foster agricultural use of prime crop and pasture land and provide for other small scale uses compatible with sustaining a rural lifestyle and an adequate level of amenity in the zone. (emphasis added)

The concept "Development Standard" is defined in s 4 of the Environmental Planning & Assessment Act 1979 in the following terms: provisions of an environmental planning instrument in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point. …

The respondent concedes that SEPP 1 might be applied to the requirements of cl 12 (3)(a) and (3)(b), but not (3)(c).

The question before the court is whether cl 12(3)(c) is a development standard or, in any event, amenable to SEPP 1. The applicant argues that it is, but the respondent argues that it is, in fact, a precondition which must be satisfied before the Council can grant consent to development in the form of a subdivision of any "prime crop and pasture land" in zone 1(c). The respondent relies on the use of the words "must" and "at least" in cl 12(3)(c), differentiating it from the operation and effect of subclauses (3)(a) and (3)(b).

In the scheme of the LEP it is noteworthy that very specific provision is made in respect of the subdivision of land in Rural Zone 1(c), and, within that zone, particularly subdivision of land classified as "prime crop and pasture land".

In Bell & Anor v Shellharbour Municipal Council (1993) 78 LGERA 429 ("Bell"), Cripps JA (a former long-serving judge and Chief Judge of this court) said (at 432-433): In the course of argument, reference was made by both counsel to a number of decisions dealing with certain clauses in planning instruments and the amenability of those clauses to the dispensing power in State Environmental Planning Policy No. 1 … I trust I do no disservice to the arguments presented when I say it is unnecessary in this appeal to deal with these cases. There is, self-evidently, a difference between a clause absolutely prohibiting development on the one hand and a clause regulating development by specifying requirements or fixing standards on the other. Whether a particular clause in a local environmental planning instrument has the effect of regulating or prohibiting development is a matter of construction. In some of the cases the Court has held that the relevant clause was an absolute prohibition - in others it was held that the clause was regulatory. But, as was pointed out in Mayoh , the obligation of the Court is to interpret the clause in the instrument before it. [emphasis added].

I accept the general principles espoused by Cripps JA in Bell, namely that the terms of each particular clause must be interpreted having regard to that clause's particular context, and that the decision in respect of one development standard or prohibition is of little assistance in the identification, classification and interpretation of any other provision. See McKay v North Sydney Council (2000) 107 LGERA 203.

Minds may differ even on the application of these general principles to any one particular provision. See Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103; c.f. Pancho Properties v Wingecarribee Shire Council (1999)110 LGERA 352.

In dealing with such questions, the tests quoted by Mahoney JA and Clarke JA in North Sydney Municipal Council v P D Mayoh Pty Ltd [No.2] (1990) 71 LGRA 222 are frequently referred to in the cases. Clarke JA in Mayoh (at 236) quoted Holland J in Kruf v Warringah Shire Council (NSWLEC, 15 December 1988, unreported) ("Kruf") as stating: ...it is not possible sensibly to say that an absolute prohibition on a form of development in a specified locality of under specified conditions is setting a standard for that form of development. It is saying that there shall be no such development, not that there may be such development only if it complies with certain requirements or standards.

Despite the fact that a number of decisions of this court have distinguished the decision in Kruf, Clarke JA in Mayoh (at 237) concluded that this should not be of great concern, because "decisions on other clauses in other instruments, particularly if they concern provisions markedly different to the one under consideration, are, at best, of limited assistance", and that "the actual decision has no relevance" to other decisions.

On the Mayoh principles, if a provision is clear on its face there is no need to go any further into detailed analysis. See Cooper Brooks (Wollongong) Pty Ltd v

Commissioner of Taxation (1981) 147 CLR 297 (per Gibbs CJ, at 304-5, quoted in Mayoh, at 233-4).

The court must here have regard to the words used in the clause, and the balance of the instrument read as a whole, including other specific provisions for subdivision, and the various objectives to which the Council is obliged by the LEP to have regard in reaching its decision.

In this instrument cl 12(3)(c) makes a very specific exception of "prime crop and pasture land" in zone 1(c), and I construe it to be prohibitive of the development of such land, rather than prescriptive of the way in which development of such land might be effected. To me that specific provision of this particular LEP says quite clearly that "prime crop and pasture land" in zone 1(c) must not be developed by way of any subdivision which results in lots of less than 10 ha.

In considering this question I have closely examined all the cases to which the court was referred by counsel for the parties. I am particularly fortified in my conclusion by the reasoning and principles applied in Currey v Sutherland Shire Council (1998) 100 LGERA 365 and Franklins v Penrith City Council [1997] NSWCA 134, on the pre-condition argument, as well as Mayoh and Bell, the discussion by Bignold J in Fencott Drive Pty Ltd v Lake Macquarie City Council [2000] NSWLEC 146 (at pars 42-69), and Stein JA's remarks in Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95 (at 103).

The fact that the strict interpretation I adopt for cl 12(3)(c) results in the effective "sterilisation" of at least some land zoned 1(c) seems to me to be completely consistent with the objectives of the LEP and of the particular zone.

In saying that land classified as "prime crop and pasture land" in zone 1(c) is not to be subdivided unless the subdivision results in an area of at least 10ha in each allotment, the plan articulates not some vague but desirable objective; it sets a specific target for use and subdivision of such land. In circumstances where the target lot size cannot be met - and here there is only 2.663 ha - subdivisional development is prohibited, and the question of amenability to SEPP 1 does not arise.

In answer to the question posed, I note the agreement between the parties that cl 12(3)(a) and (b) are development standards, but I find that cl 12(3)(c) is a prohibition not amenable to SEPP 1.

The matter will be included in the Registrar's callover list on Friday 27 April 2001.

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